Encinas was asked to exit the vehicle.  The officer noted an odor of alcohol coming from the suspects breath.  He perfrormed the HGN test and observed 4 of 6 clues (indicating the driver had likely consumed alcohol).  Encinas declined any further roadside tests and elected not to take a breath alcohol test.

Officers also testified that Encinas did not fumble for his wallet or seem disoriented.  He was steady on his feet and did not have slurred speech.  Playing of the video of the arrest showed that the officer had not properly performed the HGN and thus could not be used to determine PC to arrest.

In rendering its decsion the Court of Appeals noted:

The probable cause needed to conduct a DUI arrest requires that the officer have knowledge or reasoanably trustworthy information that the suspect was actaully in physical control of a moving vehicle while under the influence of alcohol, to a degree which renders him incapable of driving safely. (This is analogous to Washington DUI standard of “affected to an appreciable degree.)

As has been found in Washington DUI cases, when the evidence shows only consumption, but not impairment, this is insufficent to support an arrest for DUI.

In pretrial motions the trial court ruled that there would be no mention of telephone calls as this was an invocation of Defendant’s right to counsel.  In her opening statement the prosecutor made mention of the cell phone call from the back of the police car.  The defense objection was overruled.  On direct examination the prosecution elicited testimony that the Defendant wanted to call his lawyer before making a decision of whhether to submit to a BAC.  The trial court sustained the resulting objection and admonished the prosecutor on the record.  Defendant was convicted of DUII.

The Oregon Court of Appeals, in State v. Veatch, 2008 WL 4724420, overturned the conviction because the prosecutors comments during opening statements had an adversely prejudicial effect on the jury.  The Defendant’s invocation of counsel is a protected statement under the Sixth Amendment to the United States Constitution and Article 1, section 11 of the Oregon State Constitution and a jury would liklely infer that a person arrested for DUII would not ask for an attorney unles he or she was concerned about failing the test.

It’s been a bad year for Deadliest Catch’s Harris family.  Captain Phil Harris, 53, died of complications from a stroke earlier this month in an Alaskan hopital. 

People magazine spoke with the Washington State Patrol regarding the incident.

“Mr. Harris was spotted driving a BMW 3 Series erratically Thursday evening by a citizen in Shoreline, Wa. We were able to locate his vehicle by aircraft, and he was pulled over in the Seattle area. The car was registered to his father,” says Washington State Patrol spokesman Dan McDonald.

“He failed a field sobriety test and refused to take a toxicological test,” McDonald added. “After further investigation, it was found that he was involved in a hit and run with another occupied vehicle earlier in the evening. He had rear-ended another car.”

Martin A. Jones, 45, of Seaview was arrested overnight Sunday in Long Beach and has been booked into Pacific County jail.  The State Patrol is still looking for evidence and tips from the public.

According to the Seattle Post-Intelligencer: 

The State Patrol says Scott Johnson was working a drunk driving case in Long Beach when a man walked up, started an argument, and then shot him twice, including once in the head.

Dozens of officers spent Sunday going house-to-house all throughout the Long Beach peninsula. Investigators consider this an ambush, and believe Johnson was chosen at random.

Meanwhile, Trooper Johnson is recovering at a Portland, OR hospital and scheduled to be released today.  It is not known whether the bullet fragment lodged in the back of Trooper Johnson’s head will ever be able to be removed.

A federal lawsuit was filed against Fiorito by 21 people that allege they were roughed up and called anti-gay slurs by the Chicago police officer.  As many as 20 more indivudals are expected to join the suit.

A video released Tuesday appears to show Fiorito bullying a DUI suspect during a June arrest.  There are a number of problems with the way the field sobriety test were conducted.  Despite the officer’s inability to conduct the tests correctly the driver seems to do fine.  Despite his performance he is arrested for DUI. 

A second video does not appear to support Fiorito’s allegations that the driver was swerving from lane to lane and narrowly missing parked cars. 

On Novmeber 12, 2009, NBC Chicago reported:

Fiorito has been honored by Mothers Against Drunk Driving for the 313 DUI arrests he made between Jan. 1, 2007 and June 6, 2008.

He said that if he’s called to testify in these cases, he will assert his 5th Amendment rights.

Fiorito is the third Chicago cop accused of trumping up DUI charges. Last year, prosecutors dropped more than 50 cases after accusing Chicago officer John Haleas of perjury. Earlier this year, dozens of DUI arrests by officer Joe Parker came under scrutiny.

I previously practiced in a jurisdiction where all police vehicles were equipped with cameras.  The videos above demonstrate why they should be mandatory in every jurisdiciton.  Not only do offer unbiased evidence, they can be used to deter (or at least catch) police misconduct. 

As the push to arrest more and more DUI driver’s continues, these type of incidents will become more prevelant.